First Appeal No.402 of 2003

12th February, 2018.

Petitioner Counsel: Mr. D.R. KHAPRE
Respondent Counsel: Mr. G.N. KHANZODE

Cases Cited:
Ku. Kiran Vs. Sajjan Singh, (2015) 1 SCC 539 [Para 6,8,10,11,12]
Mallikarjun Vs. National Insurance Co. Ltd., 2013 ALL SCR 3564=(2014) 14 SCC 396 [Para 9]
Rajkumar Vs. Ajay Kumar, 2011(1) ALL MR 402 (S.C.)=(2011) 1 SCC 343 [Para 11]
MCD Vs. Uphaar Tragedy Victims Assn., (2011) 14 SCC 481 [Para 12]

JUDGMENT

JUDGMENT :- This is an appeal filed by the appellant-claimant, challenging the judgment and award dated 27.02.2003, passed by the 3rd Additional District Judge, Akola, in M.A.C.P. No. 95/1996, contending that the quantum of compensation granted to her by the said Court was inadequate and that she was entitled to enhanced compensation.

2. The appellant (claimant) in the present case was a minor at the time of incident. She was travelling in a State Road Transport bus being run by the respondent no.1- Maharashtra State Road Transport Corporation (MSRTC). On 11.06.1995, the said bus met with a head on collision with a truck coming from the opposite side. The said accident occurred due to the negligence on the part of respondent no.3- Driver of the said bus. In the accident, nine passengers travelling in the bus died and almost all the passengers, including the appellant, suffered injuries.

3. On the basis of the aforesaid incident, the appellant filed claim petition before the Court below seeking compensation from the respondents as she suffered 20% permanent disability due to the injuries suffered in the accident. The appellant suffered injury on her right leg, due to which there was shortening of the leg and a portion of the heel of the said leg was almost lost. The appellant had to undergo extensive treatment including surgery of her right leg and as stated above, she suffered 20% disability. This was certified by the Civil Surgeon, Akola and the said injury certificate was placed on record before the Court below by the appellant.

4. On the basis of the evidence and material on record, the Court below granted total compensation of Rs.1,10,400/- to the appellant along with interest at the rate of 9% P.A. from the date of filing of the petition till realization of the entire amount. It was held that the respondents would be jointly and severally liable to pay the aforesaid amount of compensation to the appellant. The Court below granted the said amount of compensation by calculating amounts under the heads of pain and agony suffered by the appellant, medical expenses incurred, expenses incurred by parents for attending to her and giving medical treatment, towards loss of future income as also on account of loss of education.

5. Aggrieved by the said decision of the Court below, the appellant has filed this appeal seeking enhancement of compensation.

6. Mr. D.R. Khapre, learned counsel appearing on behalf of the appellant submitted that the Court below committed a grave error by granting compensation of only Rs.50,400/- under the head of loss of future income by proceeding on the basis that it could be held that the appellant had notional income of Rs.1500/- per month. It was submitted that in the case of minors, such calculation of compensation towards loss of future income was not sustainable. It was further submitted that the Court below erred in failing to grant compensation under the heads of agony suffered by the parents of the appellant and towards future medical expenses. It was also submitted that the quantum of compensation granted under the other heads by the Court below also required enhancement. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Ku. Kiran .vs. Sajjan Singh - (2015) 1 Supreme Court Cases 539.

7. On the other hand, Mr. G.N. Khanzode, learned counsel appearing on behalf of respondent no.6 Insurance Company submitted that the Court below had granted adequate amount of compensation by taking into consideration various heads of compensation and that the enhancement sought by the appellant was exorbitant. On this basis, the learned counsel appearing on behalf of respondent no.6 opposed the contentions raised on behalf of the appellant.

8. Having heard the learned counsel for the parties and having perused the material and documents on record, it appears that the Court below committed an error in calculating the quantum of compensation payable to the appellant. Since the appellant was a minor of only 11 years of age when the accident occurred on 11.06.1995, the calculation of quantum of compensation ought to have been on the basis that she was a minor. Consequently, the principles laid down by the Hon'ble Supreme Court in that regard need to be applied. The Hon'ble Supreme Court, in its judgment in the case of Ku. Kiran.vs. Sajjan Singh (supra) has discussed this aspect of the matter and it has been held as follows:-

12. With respect to compensation towards future loss of income due to permanent disability for appellant minors, we refer to Mallikarjun v. National Insurance Company Limited ( (2014) 14 SCC 396) wherein this Court held as under:-

"7. It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. As held by this Court in R.D. Hattangad i v . Pest Control (India) Pvt. Ltd. Ors. [(1995) 1 SCC 551], while assessing the nonpecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come.

8. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non- earning persons is to take the notional income as Rs. 15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. The appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc. (emphasis supplied)

13. The Tribunal has calculated the future loss of income by taking the notional income of each the appellant-minor as Rs.15,000/- per annum. We are of the considered view that a child's notional income cannot be ascertained as per the figure given for a non-earning individuals in the second schedule of the Motor Vehicles Act, 1988. As the Tribunal and the High Court have not followed the principles laid down by this Court in the above case by awarding loss of future income due to permanent disability, therefore, we set aside the same. Further, reiterating the same principles as held in Mallikarjun's case (supra), we award Rs.1,00,000/- each towards shock, pain and suffering (non-pecuniary head) in place of loss of future income due to permanent disability. Further, in Mallikarjun case (supra) with respect to compensation for permanent disability this Court held thus:-

"12. Though, it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take different yardstick..."

14. Hence, this Court in accordance with the principles laid down by this Court in Mallikarjun case, and after examining the facts, evidence on record and circumstances of the case on hand, we deem it fit and proper to award Rs.3,00,000/- towards permanent disability of the appellant-minors viz. Kumari Kiran and Master Sachin, since they have suffered 30% and 20% permanent disability respectively, due to the shortening of their right leg by one inch after the injuries sustained in the motor accident. Further, upon considering the age of appellant-minors, they have a long journey ahead of them in their lives, during which they along with their parents will have to endure an immeasurable amount of agony and uncertain medical expenses due to this motor-vehicle accident. Thus, based on the principles laid down in the above case, we award Rs.25,000/- each towards agony to parents and Rs.25,000/- each towards future medical expenses."

9. A perusal of the above quoted judgment of the Hon'ble Supreme Court shows that when the question of compensation payable to a minor is involved, the standard formula of calculating loss of future income by taking notional income, cannot be applied. The Hon'ble Supreme Court has held that a child cannot be equated to a non-earning individual as contemplated under the Second Schedule of the Motor Vehicles Act, 1988. On this basis the Hon'ble Supreme Court has held that as per the principles laid down in its judgment in the case of Mallikarjun .vs. National Insurance Co. Ltd. - (2014) 14 Supreme Court Cases 396 : [2013 ALL SCR 3564], an amount of Rs.1,00,000/- ought to be granted as compensation to a minor towards shock, pain and suffering, which is covered under the non-pecuniary head of compensation, in place of loss of future income due to permanent disability in the case of minors. Apart from this, it has been held by the Hon'ble Supreme Court that if the minor suffers from disability between 10% and 30 %, an amount of Rs.3,00,000/- ought to be paid towards compensation to a minor. The Hon'ble Supreme Court has also recognized that parents of such minors who suffered injury and disability in an accident, ought to be granted Rs.25,000/- towards agony suffered by them and further sum of Rs.25,000/- towards future medical expenses.

10. On the basis of the aforesaid position of law laid down by the Hon'ble Supreme court, it is clear that in the present case, the quantum of compensation payable to the appellant deserves to be enhanced. The amount of compensation of Rs.30,000/- granted by the Court below for the medical expenses incurred on her treatment appear to be justified. Apart from the amount of Rs.5000/- granted to the appellant for the expenses incurred by her parents for her treatment, a further amount of Rs.25,000/- deserves to be granted for the agony suffered by the parents. The appellant also deserves Rs.25,000/- towards future medical expenses. The amount of compensation of Rs.50,400/- granted by the Court below for loss of future income has been arrived at on the erroneous basis that notional income of the appellant (minor) could have been taken to be Rs.1500/- per month. Hence following the ratio of the judgment of the Hon'ble Supreme Court in the aforesaid case, the said amount of Rs.50,400/- deserves to be replaced by an amount of Rs.1,00,000/-. The compensation granted by the Court below under the heads of loss of education and loss of amenities of life deserves to be the same. In addition, an amount of Rs.3,00,000/- deserves to be granted to the appellant for having suffered 20% disability, in terms of aforesaid judgment of Hon'ble Supreme Court in the case of Ku. Kiran (supra).

11. In this regard, it would be relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Rajkumar .vs. Ajay Kumar, (2011) 1 Supreme Court Cases 343 : [2011(1) ALL MR 402 (S.C.)], where the Hon'ble Supreme Court has laid down principles pertaining to compensation in injury cases. The Hon'ble Supreme Court has identified various heads under two distinct major heads of damages i.e. pecuniary damages and non-pecuniary damages. The principles laid down in the said judgment of the Hon'ble Supreme Court read with the judgment in the case of Ku. Kiran (supra) demonstrates that the appellant in the instant case, being a minor at the time of the incident, deserves compensation under various heads as follows:-

i) Compensation on account of pain and agony	Rs.0,75,000/-
ii) Amount towards medical expenses	Rs.0,30,000/-
iii) Amount towards expenses payable to the parents for attendance during treatment.	Rs.0,05,000/-
iv) Amount towards suffering in place of loss of future income	Rs.1,00,000/-
v) Amount towards loss of Education	Rs.0,10,000/-
vi) Amount towards loss of amenities	Rs.0,10,000/-
vii) Amount towards disability of 20 %	Rs.3,00,000/-
viii) Amount towards agony to parents	Rs.0,25,000/-
ix) Amount towards future medical expenses	Rs.0,25,000/-
Total	Rs.5,80,000/-

12. 12. Since the Court below had granted amount of compensation at Rs.1,10,400/- the amount of enhanced compensation payable to the appellant works out to Rs.4,69,600/- (Rs.5,80,000/- (-) Rs.1,10,400/- = Rs.4,69,600/-). As per the direction given by the Court below in the impugned order, the respondent nos. 1 to 3 would be jointly and severally liable to pay half the amount and the other respondents would be liable to pay the balance half of the amount of the enhanced compensation to the appellant. The enhanced amount of compensation shall also carry interest at the rate of 9% P.A. from the date of the petition till the realization of the entire enhanced amount. The rate of interest has been granted on the basis that in the aforesaid judgment of the Hon'ble Supreme Court in Ku. Kiran (supra), reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of MCD vs. Uphaar Tragedy Victims Assn., (2011) 14 Supreme Court Cases 481, to hold that the claimants in such cases are entitled to interest at the rate of 9% P.A. on the enhanced amount of compensation.

13. Accordingly, the appeal is allowed in the above terms. There shall be no order as to costs.

Appeal allowed.